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Allegation

Whilst registered with the Health and Care Professions Council as an Operating Department Practitioner, you:

1. Organised for payments, to which you were not entitled, to be made to bank accounts:

a) Controlled by and in the name of yourself and your wife;

b) Controlled by you and in your sole name; and/or

c) Associated with two other individuals, but in fact held in your sole name.

2. Misrepresented the identity of the intended payees in relation to the payments referred to in particular 1, as set out in schedule 1

3. Your actions as described at paragraphs 1 and 2 above were dishonest.

4. The matters set out at paragraphs 1 - 3 amount to misconduct.

5. By reason of your misconduct, your fitness to practise is impaired.

Finding

Preliminary matters

Application to amend the Particulars

1. The Presenting Officer confirmed that she applied to make three minor amendments to the particulars of the allegation as a consequence of what she believed to be typographical errors. She submitted that the changes did not materially prejudice the Registrant.

2. The Registrant confirmed that he had no objection to the application to amend the particulars.

3. The Panel noted that the HCPTS had provided guidance in a document entitled “Unrepresented Registrants” and was conscious of the need to ensure that an unrepresented registrant has every reasonable opportunity to make his or her case. It also had regard to the HCPC policy entitled “Standard of Acceptance for Allegations” and had the benefit of legal advice from the Legal Assessor, which it accepted. The policy document provides that allegations must be drafted in clear and unambiguous language which enables the Registrant and anyone else reading them to understand what is being alleged. So far as possible, the elements of the allegation should be set out:

a. briefly, concisely and in ordinary language which avoids the unnecessary use of technical terms or jargon; b. in separate paragraphs, each dealing with a single element of the allegation; c. with the facts in chronological order (unless there is good reason to do otherwise); d. in the logical decision-making sequence of facts, statutory ground and impairment.

4. The Panel was satisfied that the amendments proposed by the Presenting Officer ensured that the particulars of the allegation promoted the above requirements and did not prejudice the Registrant as it removed a duplicate date and corrected two plainly inaccurate dates. Accordingly the application to amend the allegation was approved.

Background

5. The Registrant is registered with the HCPC as an Operating Department Practitioner. He was a Director and Shareholder in Keystone Healthcare Limited (“the Company”) from 19 May 2008 until 16 September 2014. The Company provides temporary and full-time staff for both the NHS and private sector hospitals.

6. In June 2016 anomalies were identified within the Company payroll system by the finance department in that the data uploaded to the Company’s bank to facilitate payment differed from the information recorded within the Company’s records as having been paid. The discrepancy was initially investigated by the Company and reported to the police. Forths Accountants (“Forths”), a forensic accounting firm, were then instructed by the Company to investigate the anomalies.

7. The investigation by Forths confirmed that a number of unauthorised, fraudulent payments had been made via the payroll system over a prolonged period of time. The total of the unauthorised payments identified was £128,022. In addition to this “Payroll fraud” a number of other unauthorised payments were identified by the investigation. These included fraudulent payments to suppliers and / or corporate sponsorship (the “Supplier fraud”).

8. The fraudulent payments identified at Schedule 1 of the allegation were said to have been paid into bank accounts that were controlled by, or otherwise associated with, the Registrant. The Company therefore issued civil proceedings against the Registrant, Person B and Medipro Recruitment Limited, which was formed after the Registrant left the Company by Person D (another former employee of the Company). Summary court judgment in favour of the Company was entered against the Registrant and Person B in the sum of £128,022 in February 2017.

9. At the commencement of the substantive hearing, the Registrant confirmed that he admitted receiving the payments set out at paragraph 2 (a) to (c) of Schedule 1, that is the proceeds of the Supplier fraud, and that his actions concerning those payments were dishonest. He denied the rest of the allegation.

Assessment of Witnesses

Witness 1 (RW)

10. The first witness is the Managing Director and a shareholder of the Company Keystone Healthcare Limited. He and his wife created the Company in 2005. He is registered with the HCPC as an Operating Department Practitioner. He provided written and oral evidence to the Panel and answered questions from the Presenting Officer, the Registrant and the Panel. The Panel found him to be credible. His evidence was clear and consistent. He acknowledged that he was less certain of the facts in respect of the technical accounting aspects.

Witness 2 (BI)

11. The second witness is a Director of Forths, the forensic accountancy firm retained by the Company. The witness undertook the lead role in the investigation of the alleged fraudulent activity. The Panel was impressed by her comprehensive grasp of the documentation in this matter. The Panel noted that she was experienced in giving evidence in matters relating to fraud and her measured and professional approach was very helpful in this complex matter. She was straightforward in her evidence and able to explain the documentation to the Panel.

The Registrant (CP)

12. The Registrant gave evidence and the Panel noted that he admitted at an early stage in these proceedings that he had participated in the Supplier fraud activity. Notwithstanding this admission of dishonesty, the Panel considered him to be consistent in his evidence and calm in his demeanour. He provided discrete answers to questions asked by the Panel and the Presenting Officer and said if he could not recall. He listened closely to the case against him.

Decision on Facts

13. The Panel carefully considered the oral and documentary evidence that had been provided to it, as well as the closing submissions of the HCPC and the Registrant. There were aspects of the evidence that were common to all of the particulars alleged.

14. The evidence of Witness 1 was that the Registrant colluded with Person B to perpetrate a payroll fraud against the Company and that the proceeds of this fraud were paid into various bank accounts operated by the Registrant. Further, payments were made into accounts which the Company did not realise were operated by the Registrant, rather than the person or organisation to whom the Company believed it was making payment. In support of Witness 1’s assertion that Person B colluded with the Registrant to secure as much from the Company as possible, the Panel was provided with evidence of the inflation of Person B’s timesheets. The Panel heard that Person B would complete his timesheets accurately, but then inflate the time he billed to the Company. The proceeds paid in respect of the inflated hours were then split between Person B and the Registrant, who had helped Person B secure an improved hourly rate of pay.

15. Witness 2’s expert evidence was that the Registrant had received payments from the Company into accounts that he operated, either solely or jointly with Person A. These payments were, in the main, not overtly to the Registrant. Her company had been asked to assist in relation to a potential Payroll fraud which had been identified, and had advised the Company to check other areas where fraud was common – this led to the identification of the Supplier fraud. She identified that some invoices the Company believed had been paid to legitimate suppliers – WalshWest Commercial Risks Limited (“WalshWest”) and VatQuest Limited (“VatQuest”) - had in fact been paid to accounts operated by the Registrant. The mechanism by which this had happened was that the banking details for one of the Registrant’s accounts was included within the invoice in place of the two supplier’s actual banking details. Further, both suppliers confirmed that they had not issued the invoices and were not due to receive any payment from the Company.

16. Witness 2 was also able to explain to the Panel how the Payroll fraud operated. The payroll system used by the Company was designed and managed by Person B, who was an IT consultant. Prior to the payroll system being adopted, timesheets for each individual (in excess of 400) were manually inputted and individual payments created, which was time intensive. With the payroll system written by Person B, the timesheet details were inputted but the creation of payments was then automated – the file upon which the timesheet information was inputted automatically instructed the Company’s bank to make the correct payment to the correct individual. This saved a substantial amount of administrative time, and reduced the number of banking transactions for the Company. However, when building the system, it appears that Person B included a mechanism, which he could turn on and off, to create an additional payment. This additional payment was not visible to the employees who input the individual timesheets or the finance team, but was added to the instruction for payment to the Company’s bank. Person B entered details of the account that should be paid (one of those operated by the Registrant, solely or jointly with Person A), and instructed the system to calculate a percentage of the total payroll as the amount to be paid. The payment appeared on the instruction to the bank as a payment to “Keystone”, but in fact was a fraudulent payment that was received into one of the Registrant’s bank accounts.

17. Witness 2 explained that the percentage applied by Person B was always less than 2% of the total payroll payment. This was of significance as it was within the tolerance to be expected and would not therefore draw the attention of the Company’s finance team or auditors. The Payroll fraud was identified purely by chance as a consequence of the Company’s internet bank crashing during a payroll run, necessitating the finance department checking each individual payment in the batch to see which employees had been paid and which remained outstanding.

18. For the HCPC, the Presenting Officer submitted that the evidence against the Registrant in respect of the Payroll fraud was “inferential”. The Panel noted that the evidence against the Registrant was that payments were made from the Company to one of his accounts without the Company being aware that the Registrant was receiving the payments.

19. In relation to Particular 1, the Presenting Officer submitted that “organised” had the ordinary meaning of “making arrangements” – it was sufficient for the Registrant to make sure that necessary arrangements were made, that is, by devising the scheme and / or agreeing to it and / or collecting the proceeds of the fraud via his bank accounts. She confirmed that the Registrant accepted in his evidence that he had no entitlement to the sums particularised at paragraph 1 of Schedule 1 (being the proceeds of the Payroll fraud) or the sums particularised at paragraph 2(b) and (c) of Schedule 2 (being the Supplier fraud), and that the funds were paid into accounts he held either solely or jointly with Person A.

20. For Particular 2, it was submitted on behalf of the HCPC that all of the payments set out at Schedule 1 paragraphs 1(a) - (e), were sent with an intended payee payment reference “Keystone”. None of those payments were made to any accounts held by Keystone and this was therefore a misrepresentation given that none of the recipient accounts were held by the Company but instead were received into the Registrant’s accounts. The Presenting Officer submitted that the Panel did not need to be satisfied that the Registrant himself physically entered the reference “Keystone” into the payment system, merely that he organised that such a misrepresentation would be made to facilitate the fraudulent payment in order to avoid detection. She directed the Panel to the Particulars of Claim filed on behalf of the Company, which focused mainly on issues wider than the Payroll fraud. She also referred the Panel to the summary court judgment in respect of the Registrant and Person B, dated 2 February 2017. More information was available to the Court in support of that application than has been provided to the Panel in relation to this hearing, however the focus of those proceedings was the mechanism by which the money was secured, rather than the organisation behind the same. This meant that the judgment was of limited benefit to the Panel.

21. The Presenting Officer confirmed that the issue of dishonesty, set out at Particular 3, was of course a matter for the Panel to determine, but she reminded it that the test was now more objective, and in essence required the Panel to decide whether the Registrant’s actions were dishonest by ordinary standards.

22. The Registrant’s evidence was that he had provided details of all of his bank accounts to Person B. He did this as he had become friendly with Person B and was content to help him hide his true earnings from his wife – he stated that he gave Person B his bank details via a screenshot so Person B could have his wages paid into the Registrant’s accounts. The Registrant fully accepted that the sum of £128,022 was paid into a number of his accounts over a period of approximately 2 years by the Company, over and above his legitimate wages, expenses and dividends, and over and above the Supplier fraud. He also accepted that he was not entitled to these payments. He asserted that he believed that the additional sums were legitimate payments due to Person B from the Company. He said that he either forwarded the money on to Person B or withdrew cash for Person B. The Registrant stated he also retained some of the money to pay for their trip to Las Vegas in 2014. This was an expensive holiday as they had flown business class, stayed in a suite of rooms and gambled. The Registrant stated that Person B did not want his wife to know how much it had cost, which is the explanation offered by the Registrant as to why he had booked and paid for everything, recovering the cost from deductions from Person B’s “wages”. He told the Panel that after they had been away, Person B asked him to use part of the payments to buy shares on his behalf.

23. The Panel had sight of emails between the Registrant and Person B which appeared to refer to the Supplier fraud and a further potential “Mega-Scam” involving unresolved timesheets. Two witness statements of Person B, prepared for the purposes of civil proceedings but not accepted by the Court or tested in those proceedings, were presented by the Registrant to the Panel. They contained information about the Supplier fraud but did not address the Payroll fraud in any way, and the Panel noted in any event that the Registrant himself acknowledged that he gave “no weight to the witness statement from Person B”. Further, it noted the Registrant’s evidence that he thought Person B retained those emails, but not others between them, to implicate the Registrant in the fraudulent activity.

24. The Registrant also stated to the Panel that he reviewed his bank accounts regularly so he could ensure that he moved money to his offset mortgage account. The evidence available to the Panel showed that five accounts in the Registrant’s sole name (those ending 4707, 1079, 0519, 5922 and 1647), over a variety of periods, had outgoings which matched the credits to a pound, totalling some £190,888 between April 2014 and May 2016. The Registrant also confirmed that he had not disclosed any accounts with a zero balance in relation to the civil proceedings.

25. The Registrant supplied the Panel with an email purporting to be from Person E which confirmed that Person E authorised the Registrant to help him with his timesheets and resultant payments from the Company. The Registrant confirmed that payments in respect of Person E were received into his bank account ending 4707. The Panel accepted that the Registrant had in all likelihood set this arrangement up legitimately to assist Person E. However, it was not disputed by the Registrant that Person E ceased to work for the Company in September 2014, when the Registrant also left the Company. The Registrant offered no explanation as to why the Payroll fraud payments into account 4707 commenced in November 2014 and continued until August 2015.

26. The Registrant also provided to the Panel a witness statement from Person B dated December 2016 in which he stated “for a period of time between January 2014 and September 2014, my invoices were paid to the First Defendant. This was the First Defendant’s idea. The payments were then split by the First Defendant, the majority would be paid directly to my bank account, and he would take the rest to pay for the trip to Las Vegas as a part payment. I received no other payments.” The Registrant also provided a second statement from Person B dated December 2017 which reiterated the above and also included the statement that “The First Defendant did not in any way benefit from my wages. This was just a way of paying for the trip without my wife knowing the true cost”. The Registrant did not explain to the Panel the discrepancy between his evidence to it that Person B requested his assistance in hiding the cost of the Las Vegas trip by having his payments paid to the Registrant, and Person B’s statement that it was the Registrant’s idea.

27. The Registrant also said that he not only paid money to Person B by bank transfer, offsetting it against the Las Vegas trip or share-dealing, but also gave him large sums of cash. The withdrawal of large sums of cash from the Registrant’s accounts on a regular basis is supported by the banking records - for example, in February 2015, the cash withdrawals across all of the Registrant’s accounts amounted to £18,650. The Registrant’s evidence to the Panel was that he paid cash to Person B if requested to do so. This was not accepted by the Panel as no evidence was produced to support that statement.

28. Having formed a view on the general issues pertinent to this matter, the Panel then considered each allegation in turn, taking account of the documentary and oral evidence available to it, the submissions of the Presenting Officer and the Registrant and the legal advice provided by the Legal Assessor. In determining whether an allegation is “well founded” or “proved”, the Panel was required to decide firstly whether the HCPC, which has the burden of persuasion in relation to the facts alleged, had discharged that burden.

Particular 1(a) - whilst registered with the Health and Care Professions Council as an Operating Department Practitioner, you organised for payments, to which you were not entitled, to be made to bank accounts controlled by and in the name of yourself and Person A – found proved.

29. The accounts ending 6042 and 1647 were joint accounts operated by the Registrant and Person A. Payments were made by the Company into the 6042 account in respect of both the Payroll fraud and the Supplier fraud. Account 1647 only received payments in respect of the Supplier fraud. The Panel noted that the Registrant accepted creating invoices purporting to be from VatQuest, submitting them to the Company and in one instance authorising the same for payment. The bank details provided on the invoice dated 27 July 2014 related to the joint account operated by himself and Person A (1647). Details of the bank account were included in the Company’s records for the purpose of making authorised payments in respect of dividends, reimbursement of expenses and wages to the Person A. The proceeds of the Payroll fraud set out in Paragraph 1(a) of the Schedule were paid into the account 6042, which was also utilised by the Company for legitimate payment of wages, expenses and dividends for the Registrant.

30. The Panel first addressed the admissions made by the Registrant, recognising that notwithstanding the admissions, it still needed to be satisfied that the HCPC had proved the elements of the particular. A payment in satisfaction of the WalshWest invoice in the sum of £3,084.01 was made by the Company to the Registrant’s account 3089. An identical sum (less one penny) was then moved from account 3089 to the joint account 0195 on the same date - 19 August 2014. The Registrant admitted to the Panel that the invoices that produced this payment (in the sums of £2,042.00 and £1,042.00, the latter being authorised for payment by the Registrant in accordance with internal Company procedures on 14 August 2014) were entirely fictitious, created by him purely for the purpose of obtaining payment from the Company. He said that this sort of thing was also done by Witness 1 and that they had an agreement as to an upper limit of “expenses” that could be claimed from the Company. This was denied by Witness 1 and in any event was not found to be of relevance by the Panel. The Panel was satisfied that the Registrant organised the payment by submitting the invoices in the name of WalshWest, that he was not entitled to the payment, and that the payment was made into an account to which he had access.

31. The Panel then considered the payments made as a consequence of the so-called “Payroll fraud”. It noted the Registrant’s submission in closing that “no compelling evidence was presented that I had any knowledge that these were fraudulent” but reminded itself that that was not the allegation it had to determine. The Registrant accepted that he was not entitled to the payments which had been paid into his account by the Company, but said he thought they were legitimate payments due to Person B which he was receiving as a favour, as he had done with his friend, Person E. He had paid the money back when summary judgment was entered against him. The HCPC’s position was that the Registrant had, with Person B, enabled the hidden payments to be made via the Company’s payroll, to accounts controlled by the Registrant when he was not entitled to those payments.

32. The Panel determined that it would adopt the natural meaning of the word “organise” to include “arranging”. The Panel was mindful of the advice it had received in respect of the good character of the Registrant. It was something which the Panel should take into account when deciding whether to believe his evidence. Having reviewed all of the evidence available to it however, the Panel was satisfied that it was not credible that the Registrant was unaware that he was receiving payments that he was not entitled to. 33. Given the admissions of the Registrant in relation to the Supplier fraud (i.e. the payments set out at paragraph 2 of Schedule 1, save for (a), on which the HCPC offered no evidence), the Panel was satisfied that the particular was proved against him in respect of those Supplier payments. It was also satisfied, on the balance of probability, that the Registrant had arranged for the Payroll fraud proceeds to be made into the account he controlled jointly with Person A when he was not entitled to them. This particular was therefore proved in its entirety. Particular 1(b) - whilst registered with the Health and Care Professions Council as an Operating Department Practitioner, you organised for payments, to which you were not entitled, to be made to bank accounts controlled by you and in your sole name;

34. The facts in relation to this particular are identical to those set out in relation to Particular 1(a), save for the bank accounts into which payments were made being in the sole name of the Registrant (accounts ending 0519 and 5922). The payments into these accounts are particularised at paragraph 1(d) and 1(e) of Schedule 1 of the Particulars. The Panel does not intend to repeat the detail set out above, with the exception of the banking attributions. The Registrant’s evidence in respect of this particular remained that he genuinely believed that the payments made into his accounts reflected the legitimate payments due from the Company to Person B.

35. The HCPC submitted that the accounts identified as belonging solely to the Registrant received payments as follows:

- 0519£33,789 via 24 payments between 20 November 2015 and 27 May 2016 (Schedule 1 paragraph 1(e) of the Particulars;

- 5922 £25,205 in 14 payments between 14 August 2015 and 13 November 2015(Schedule 1, paragraph 1(d) of the Particulars;

Although evidence is not before the Panel that Person B continued to receive his regular monthly payments from the Company, the Panel accepts the summary judgment of the Court that “Person B also received legitimate payments throughout”, which was not challenged by the Registrant.

36. The Registrant admitted that he arranged for payment of £1,200 to be made to his account number 2721 by the Company on 27 June 2014 by way of the fictitious invoice that he submitted, as set out in Schedule 1, paragraph 2 (b).

37. In view of the above, the Panel was satisfied, on the balance of probability, that this particular was proved.

Particular 1(c) - whilst registered with the Health and Care Professions Council as an Operating Department Practitioner, you organised for payments, to which you were not entitled, to be made to bank accounts associated with two other individuals, but in fact held in your sole name.

38. The facts of this particular again substantially repeat the information set out above in relation to particular 1(a) and (b). However, this particular related to payments made into accounts held by the Registrant but which the Company were led to believe belonged to Person B (account ending 1079) and Person E (account ending 4707).

39. The Panel noted however that the allegation it had to determine was whether the Registrant had received payments from the Company when he was not entitled to do so. The Registrant said in his evidence that he had told the finance department what he was doing in respect of Person E, and that was why Person B had asked for a similar arrangement, but there was nothing to substantiate this. The expert report confirmed that the Registrant received the following sums:

Account 1079 (Person B)£17,430 via 10 payments between 11 July 2014 and 19 September 2014 (Schedule 1, paragraph 1(b) of the Particulars) – as set out above;

40. The Panel was satisfied that the Registrant had organised for the above payments, to which he was not entitled, to be paid by the Company to his accounts, and accordingly this particular was proved.

Particular 2 - whilst registered with the Health and Care Professions Council as an Operating Department Practitioner, you misrepresented the identity of the intended payees in relation to the payments, referred to in particular 1, as set out in schedule 1.

41. The Panel carefully considered the payments made by the Company to accounts apparently associated with Persons B and E, but in reality held in the sole name of the Registrant - Person B (account 1079) and Person E (4707). It noted that the Registrant accepted that the payments were made into his accounts, and also his evidence that at the start, the payments were in fact legitimate.

42. It was the Presenting Officer’s closing submission that the misrepresentation perpetrated by the Registrant was in marking the payroll system hidden payment as being to “Keystone” when it was not, to avoid detection.

43. The Panel did not accept this interpretation however, as the payments to “Keystone” were hidden in the payroll system and if identified, would immediately be identified as problematic as the Company was not making payments to itself. The Panel considered that the evidence it had heard was that the misrepresentation occurred when banking details for accounts operated by the Registrant were provided to the Company as being the banking details for other entities – being WalshWest and VatQuest – or other individuals – i.e. Person B and Person E. Those representations, however entered into the Company’s records, led the Company to falsely believe it was making payments to those entities and individuals when in fact the payments were going to the Registrant. The Panel concluded that the Registrant and Person B did not want the Company to know that it was making payments to the Registrant after he left it in September 2014 (legitimate or otherwise), otherwise he would not have sought to conceal the payments by attributing the accounts to persons other than himself.

44. Whilst the Registrant may not have changed the bank details held in the Company’s records, he provided the information to Person B who did have access to change these records, and therefore the Panel was satisfied that this particular was proved.

Particular 3 - Your actions as described at paragraphs 1 and 2 above were dishonest.

45. The Registrant has accepted from an early stage that his actions in perpetrating the Supplier fraud are dishonest. However, he has consistently denied any knowledge of the Payroll fraud, asserting that he believed these payments to be genuine payments due to Person B.

46. The Panel was not persuaded by the Registrant’s evidence in relation to the proceeds of the Payroll fraud. The Registrant was, by his own evidence, an experienced businessman who actively monitored his finances, moving money around on a very regular basis. The Panel did not consider it credible that he would approve apparently reasonable monthly invoices for Person B, but then not question payments purporting to be in respect of Person B being made on a weekly basis. The Registrant had been with the business since 2008 as a director and would therefore be familiar with procedures and processes. The fact that he refused to admit any concerns in relation to this, his frank admissions that he and Person B had regular conversations about scams, which he said Person B bombarded him with in the hope that he would agree to one, and his admission that he readily submitted false invoices to the Company was indicative of a fundamentally dishonest mindset on the part of the Registrant. The Panel noted that his evidence to them was that he sought the help of Person B to make sure that his expenses claims “kept up” with those of Witness 1. Further weight was given to this mindset by the fact that the Registrant seemed accepting of, and unconcerned by, the fact that Person B was, by the evidence given by the Registrant, apparently fundamentally dishonest. The Registrant was content to allow Person B to continue to work with the Company as a consultant with unfettered access to all of the Company’s financial data. He did not consider this to be a risk to the business in which he was a shareholder and did not seem to be concerned about his fiduciary duty as a director to the Company.

47. The Panel considered that the actions of the Registrant as set out in particulars 1 and 2 were dishonest, and this particular was therefore proved.

Decision on Statutory Ground

48. Having determined the facts and found all of the particulars proved, the Panel was required to judge whether the facts found proved amounted to a statutory ground as advanced by the HCPC. Whilst this would usually be considered following submissions from representatives on grounds and impairment, given the complexity of the documentation and the fact that the Registrant is unrepresented, the Panel considered it most appropriate to ensure that each stage in proceedings was dealt with distinctly.

49. The HCPC submitted that the facts the Panel had found proved amounted to the statutory ground of misconduct. The Registrant reminded the Panel that he accepted at an early stage of the regulatory process that his actions in relation to the Supplier fraud were dishonest. The HCPC did not seek to advance any of the other statutory grounds set out in the Health and Social Work Professions Order 2001 at article 22(1) (i.e. lack of competence, criminal conviction or caution, physical or mental health, or a finding of impairment by a regulatory body).

50. The Panel was aware that determining the issue statutory grounds was a matter for its own judgement. In considering the grounds, the Panel took into account the oral submissions of the Presenting Officer and those of the Registrant. It accepted and applied the Legal Assessor’s advice, noting in particular that the relevant authority was Roylance v General Medical Council [1999], which advanced the premise that:

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a ....practitioner in the particular circumstances. The misconduct is qualified in two respects. First it is qualified by the word ‘professional’ which links the misconduct to the profession ....Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious”.

51. The Panel also had regard to relevant guidance issued by both the HCPC and the HCPTS. It noted that breach of the professional standards alone does not necessarily constitute misconduct. The Registrant had repeatedly and from an early stage in proceedings accepted that he had acted dishonestly in relation to the Supplier fraud. The Panel had determined that he also acted dishonestly in relation to the Payroll fraud, which had continued for a long period of time and been designed to avoid detection.

52. The Panel concluded that the conduct of the Registrant was dishonest by ordinary standards in respect of both particulars, and that this dishonest conduct amounted to the statutory ground of misconduct. It could not be said that the Registrant’s behaviour was anything other than a deliberate fraud perpetrated on the Company for his own financial gain which was dishonest and amounted to conduct far short of that to be expected of a registered professional. Regardless of the sums involved, his misconduct was serious, particularly given his status as both a Director and Shareholder in the Company. Accordingly, the Panel was satisfied that the statutory ground of misconduct was made out.

Decision on Impairment

53. The Presenting Officer made comprehensive submissions in relation to the issue of impairment, submitting that the Registrant is currently impaired and referring the Panel to the evidence of the Registrant, relevant case law and the test for impairment. She also addressed the Panel in relation to the Standards of Conduct, Performance and Ethics adopted by the HCPC (2012 edition):

“3 You must keep high standards of personal conduct. You must keep high standards of personal conduct, as well as professional conduct. You should be aware that poor conduct outside of your professional life may still affect someone’s confidence in you and your profession. 13 You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession. You must justify the trust that other people place in you by acting with honesty and integrity at all times. You must not get involved in any behaviour or activity which is likely to damage the public’s confidence in you or your profession.”

54. The Registrant stated that there were no excuses for his dishonesty and that he was thoroughly ashamed. He also stated that “I am of no risk to anyone as I have learnt my lesson”. He provided to the Panel a number of testimonials from colleagues. The Panel was concerned that there was no mention of the HCPC allegation in any of the testimonials provided by the Registrant. The Registrant was questioned on this and stated that he had told them.

55. The Panel listened carefully to the Presenting Officer’s submissions in respect of current impairment and received and applied advice from the Legal Assessor. It noted that to assist with determining whether fitness to practise is impaired, the HCPTS has published a practice note for the guidance of panels and to assist those appearing before them. The test of impairment is expressed in the present tense in relation to the need to protect the public against the acts and omissions of those who are not fit to practise, but this cannot be achieved without taking account of the way a person has acted or failed to act in the past. When assessing the likelihood of recurrence of harm, Panels must take account of the degree of harm caused by the Registrant and the Registrant’s culpability for that harm, recognising that the harm could have been greater or less than the harm which was intended or reasonably foreseeable. Panels may also take account of character evidence.

56. The Panel found that all of the particulars had been proved, and that they amounted to the statutory ground of misconduct. It was mindful that a finding of impairment does not automatically follow a finding on that ground. However the public may struggle to understand why, if facts were found proved that amounted to the statutory ground, a finding of impairment did not follow. The Panel was therefore expected to consider the following factors prior to reaching a determination in respect of impairment:-

- the forward-looking nature of the impairment test;- the wider public interest; - its findings of fact; - the extent of the Registrant’s insight and remorse; - the extent of any remediation undertaken by the Registrant; and- the risk of repetition.

57. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective. It was concerned that although the Registrant had admitted his guilt in relation to the Supplier fraud at an early stage, throughout the hearing he sought to minimise his involvement in the Payroll fraud, and justified the Supplier fraud as being something that was a cultural issue within the Company. He did however appear to appreciate the gravity of the Particulars alleged, which had culminated in findings of serious misconduct being made against him.

58. Notwithstanding the admissions made by the Registrant, the Panel struggled to identify meaningful evidence of insight, contrition, remorse, recognition or remediation in respect of the Registrant’s conduct. For example, no reflective pieces had been submitted by the Registrant. He had engaged in dishonest conduct over a period of years in respect of the Company to which he owed a fiduciary duty and it could not be said that this conduct was an isolated incident. The Panel was concerned that despite alleging a culture of financial dishonesty within the Company the Registrant had continued to engage with the dishonest acts.

59. It appeared to the Panel that the Registrant had repeatedly put his own interests first. He had demonstrated a dismissive attitude to the Company and Witness 1, even using the Company’s email system to communicate with Person B in respect of the fraud and further potential frauds.

60. The Panel noted that the serious misconduct of the Registrant was dishonest and that it is often difficult to demonstrate remediation in respect of dishonesty. However there was little evidence that the Registrant had even attempted to remediate his dishonesty, save for paying back the proceeds of the Payroll fraud following the summary judgment issued in the civil proceedings. Without appropriate insight, the effectiveness of remediation would in any event be limited. It concluded that in the light of the Registrant’s lack of insight and remediation, together with the prolonged period of time over which the fraud had been perpetrated, there was a real risk of the misconduct being repeated and therefore it found the Registrant to be impaired on the personal aspect of the test for impairment.

61. Consideration was then given by the Panel to public confidence in the profession and the Regulator if a finding of impairment was not made. It also had regard to the fact that confidence in the Regulator would also be eroded in respect of right-thinking registered professionals if a finding of impairment was not made given the level of dishonesty perpetrated by the Registrant over a prolonged period of time, and the lack of meaningful insight and remorse demonstrated by the Registrant.

62. The Panel had regard to important public policy issues when considering the public component of impairment, which include the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour. It considered that members of the public and members of the profession would be concerned to learn that an Operating Department Practitioner had been found to have engaged in serious and dishonest misconduct over a number of years. It determined that public and professional trust and confidence in the profession, professional standards, and the Regulator would be undermined if a finding of impairment was not made. The Panel concluded that the Registrant’s fitness to practise is currently impaired on the basis of the public component as well as the private component.

Decision on Sanction

63. The Presenting Officer invited the Panel to consider the Sanctions Policy adopted by the HCPTS, noting that the Panel had already identified some of the aggravating and mitigating factors in this matter. The Panel would be considering the deterrent effect of any Sanction and should balance the need to protect the public, the wider public interest and the Registrant’s interest. She confirmed that sanction was not intended to be punitive to the Registrant, but may have that effect. She informed the Panel that the Registrant had been suspended from practice on an interim basis since February 2017. No concerns had been expressed about his clinical practice – the issue of concern related to the breach of trust, and the level of insight and remorse previously addressed would be key. She invited the Panel to keep in mind the level of dishonesty perpetrated and the period of time when considering what least restrictive sanction afforded sufficient protection for the public. In mitigation the Presenting Officer highlighted that the Registrant had been practising as an Operating Department Practitioner since 1982 and had a previously unblemished career. No direct harm had been caused to patients or service users, and he had provided testimonials which should be taken into consideration.

64. The Registrant thanked the Panel and other officers involved in the proceedings, saying he just wanted to put his version of events before the regulator. He made no other representations to the Panel other than to ask them to consider what he had said to them already in these proceedings.

65. The Panel took legal advice and reminded itself that each case must be determined on its own merits and therefore the HCPC does not have a tariff of sanctions. It has however adopted a policy in respect of sanctions, which has recently been updated, to aid panels to make fair, consistent and transparent decisions. Clear and cogent reasons should be given by any panel departing from this policy. The purpose of fitness to practise proceedings is not to punish but to:

(a) protect the public by ensuring that registered health care professionals practise to a minimum universal standard;(b) maintain public confidence in the regulatory process;(c) protect the reputation of the profession concerned;(d) act as a deterrent to other registrants.

66. Article 29 of the Health and Social Work Professions Order 2001 provides that the sanctions available to a panel to protect the public are:

Alternatively, a panel may decide that no further action is required. When determining the appropriate level of sanction, panels must be proportionate so that the sanction is proportionate to the circumstances, protects the public in the least restrictive manner and takes account of the wider public interest, striking a proper balance between the rights of the Registrant and the public.

67. The Panel identified the following mitigating factors in this matter:

(a) the Registrant had expressed remorse from an early point in the regulatory process; (b) no patients had been directly affected by the Registrant’s conduct; (c) the Registrant had an unblemished regulatory record prior to these proceedings; (d) the Registrant admitted some allegations and engaged with the regulatory process.

and the following aggravating features of this case:-

(e) the Registrant’s failings related to fundamental aspects of practice of registered professionals – the requirement to be honest and trustworthy; (f) the period of time over which the Registrant had continued his misconduct and its repetitive nature; (g) the impact his actions had upon the Company and colleagues; (h) the lack of insight, particularly in respect of the impact of his conduct on his colleagues and the wider community.

68. Given that the Panel did not believe that the Registrant had demonstrated either insight or meaningful remorse for his conduct, it therefore remained concerned as to his future practice. As a result, it was not appropriate for the Panel to take no action. It noted that there was no outstanding dispute that mediation would assist with and therefore mediation was also an inappropriate sanction in this matter. It also did not consider a Caution Order to be appropriate given that the behaviour was repeated over a number of years, there was a risk of repetition and there was no evidence to suggest the conduct was out of character.

69. The Panel therefore moved on to consider whether a Conditions of Practice Order would be appropriate. It noted that conditions will rarely be effective unless the Registrant is committed to resolving the issues to be addressed and can be trusted to make an effort to do so. The Policy points out that conditions of practice are unlikely to be suitable where, as in this case, the Registrant is lacking insight and has not fully accepted his wrongdoing.

70. The Panel considered whether any conditions could be drafted in this case and concluded that it would not be possible to satisfy the public interest imposition of conditions. Dishonesty is a case where public interest is paramount and the Registrant’s practice as an ODP is not the issue. Accordingly, a Conditions of Practice Order was not an appropriate sanction to impose in this case.

71. The Panel then went on to consider whether a suspension order would be appropriate. However, it concluded that a Suspension Order would not satisfy the public interest, afford the public sufficient protection or send out a clear message that this breach of a fundamental tenet of the profession is unacceptable. The Panel’s concerns about the risk of repetition had not been allayed, and the Registrant had limited insight into the serious nature of his misconduct.

72. The Panel determined that the only course of action open to it that would adequately satisfy the public interest, protect the public and maintain confidence in the regulatory process would be an order striking the Registrant from the register. He had demonstrated dishonest conduct, which was serious, deliberate and over a prolonged period and showed little meaningful insight into, or remorse for, the impact his behavior had on his profession, the Company, his colleagues or the wider community. The Panel was conscious of the mitigating factors of this case, however the Panel was satisfied that any sanction other than striking the Registrant from the register would undermine public and professional confidence in the Regulator.

Order

The Registrar is directed to strike the name of Mr Colin R Parr from the Register on the date this order comes into effect .

Notes

Right of Appeal:

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.Under Articles 30(10) and 38 of the Health and Social Work Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

Interim Order

73. Upon the Panel determining the appropriate sanction to be a Striking Off Order, the Presenting Officer requested that the Panel exercise its discretionary power to impose an interim suspension for the time allowed for appealing against the final disposal order or, if such an appeal is made, whilst that appeal is in progress. The Registrant was aware of the possibility of this application and did not object to the same.

74. The Presenting Officer submitted that an Interim Suspension Order was applied for on the grounds of public protection and in the public interest based on the risk of repetition of misconduct as identified by the Panel in its decision. She reminded the Panel that the substantive Striking Off Order it had imposed would not take effect until the time for lodging an appeal had elapsed, or when any such appeal is determined, whichever is the later. Given that the Panel had specifically found that the Registrant poses a risk to the public and imposed the Striking Off Order in the public interest, it would be entirely appropriate for an Interim Suspension Order to also be imposed.

75. The Panel carefully considered the submissions of the Presenting Officer and the advice provided by the Legal Assessor, which it accepted. They also noted the provisions of the guidance note issued by the HCPTS in respect of Interim Orders. It reminded itself that an interim order may be appropriate where:- there is a serious and ongoing risk to service users or the public from the registrant’s conduct; or- the allegation is so serious that public confidence in the profession or the regulatory process would be seriously harmed if the registrant was allowed to remain in practice on an unrestricted basis. 76. The Panel were mindful that, in imposing a Striking Off Order, it had found that there was an ongoing risk to service users from the actions of the Registrant. The Registrant was aware of the possibility of an Interim Order application and had not made any objection to the same, or commented on the application. The factors which led the Panel to impose the Striking Off Order were still pertinent.

77. Given that the Panel earlier today considered the Registrant’s misconduct to be such that striking off was warranted for the protection of public, it believed that public confidence in the regulatory process would be seriously harmed if the Registrant was allowed to remain in practice on an unrestricted basis pending the substantive Striking Off Order coming into effect. Without an Interim Suspension Order, there would be no bar to the Registrant practising. Therefore, the Panel determined that it was appropriate and proportionate to impose an Interim Order of Suspension pursuant to Article 31(2) of the Health and Social Work Profession Order 2001 for a period of 18 months to protect public and otherwise promote the public interest.